Montgomery, R. v [2007] EWCA Crim 2157

Case No 200700057 C3[2007] EWCA Crim 2157
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 31 July 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE UNDERHILL
RECORDER OF HULL
(Sitting as a Judge of the Court of Appeal)
Between
R E G I N ACrownv
Between
DAVID JOHN MONTGOMERY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P LEVY appeared for AppellantMR G MCKINLEY appeared for Crown
J U D G M E N T
[1]MR JUSTICE UNDERHILL: This appeal raises an interesting point about the scope of the common law offence of escape from lawful custody. It was referred to the full court by the Registrar and it is convenient to say at this stage that we grant the application for leave to appeal and extension of time for doing so, notice having been lodged out of time. The appellant is represented by Mr Philip Levy and the Crown by Gregor Mr McKinley. We are grateful to them both for their submissions.[2]The facts giving rise to the appeal can be summarised as follows.[3]On 4th October 2004 the appellant was sentenced to six years' imprisonment for a number of offences, including burglary and other offences of dishonesty. In due course he was transferred to Balantyre House, an open prison in Kent. Rule 9 of the Prison Rules, headed "Temporary Release", by paragraph (1) provides for the Secretary of State to "release temporarily a prisoner to whom this rule applies" in various circumstances specified in paragraph 3 of the Rule.[4]The appellant was granted temporary release under Rule 9. We do not have very much information about the nature of the release arrangement, but apparently he was released each morning to go to some form of employment, being one of the circumstances identified under paragraph 3. We are told in a letter from the governor of the prison that he was "not under any form of supervision", but we were told by counsel that he was obliged to return to the prison at a specified time each evening.[5]On the evening of 2nd April 2006 the appellant did not return to prison at the appointed time. He remained at large until 19th May, when he was observed by chance by a police officer and arrested. He was charged with escape from lawful custody. On the advice of counsel he pleaded guilty, and he was sentenced at Woolwich Crown Court to a term of eight months' imprisonment, to run consecutively to the term which he was already serving. He has since received advice that the admitted facts did not disclose the offence charged. If that advice is correct, the original advice which he received at the time that he entered his plea was wrong and the Crown properly accepts that this would be one of those exceptional cases where the court should entertain an appeal notwithstanding the appellant's plea of guilty.[6]The issue for us is thus simply whether a prisoner on temporary release in the circumstance set out above who fails to return to prison at the expiry of the period of release is guilty of the offence of escape from lawful custody.[7]The ingredients of the offence of escape from lawful custody were authoritatively established by this court in R v Dhillon [2006] 1 Crim App R 15. That was a case in which the appellant had been arrested by the police as an illegal immigrant and taken to a police station. It appeared that he might have suffered a knee injury, and he was taken the following day by a police officer to the accident and emergency department of the local hospital for an X-ray. Subsequently, a different officer (PC Mitchell) was sent to replace that officer and to wait with the appellant. The appellant was not accompanied into the actual examination room, and following his examination he left the hospital without making contact with his escort. David Steel J, delivering the judgment of this court, conducted a thorough review of the authorities and summarised their effect at paragraph 21 of his judgment in the following terms:
"In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things i) that the defendant was in custody; ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not); iii) that the custody was lawful; and iv) that the defendant intentionally escaped from that lawful custody."
Unfortunately, the summing-up in that case contained no clear direction on the ingredients of the offence and the appellant's conviction was quashed. At paragraph 27 David Steel J said this:
"We are ... concerned that the jury were not in any sense adequately instructed on the issues. Little or no controversy arose from the initial arrest (and the consequent lawful custody) or indeed from the final 'escape' (in the sense of eluding any continuing custody). What was in issue was the question of the continuity of the custody and the appellant's knowledge of it. 28. Although the judge made considerable play of what might be assumed to have happened on PC Mitchell's arrival, the jury's task in assessing continuity was potentially impeded by the absence of any evidence from the police officer who took the appellant to hospital and who was later said to have effected the handover to him (a handover which on any view was relatively informal). There was a live issue as to whether the appellant was still subject to sufficient direct control at the time of his escape two hours later. By the same token, there was an issue as to the appellant's knowledge since his case was that, whilst he saw the first officer leave, he never saw the second officer arrive and could find no substitute."
[8]It will be seen that although the summary of the ingredients of the offence provides an invaluable starting point the specific problem which arose in Dhillon was different from the issue in the instant case, which is essentially whether, on the undisputed facts, the appellant is to be regarded as having been "in custody" in the period immediately prior to, or at the moment of, his non-return; in other words, whether the first ingredient identified by David Steel J is present. As to that, there is very little guidance in the cases. With commendable diligence Mr Levy has unearthed and discussed in his advice in support of the appeal a number of authorities in which various issues in relation to the applicability of the offence were dealt with, in particular R v Allan (1841) C & M 295; R v Hinds 41 Crim App R 143; R vTimmis [1976] Crim L R 109, R v Frassati 73 Cr App R 28; Nicoll vCatron 81 Crim App R 339; R v Moss and Harte 82 Crim App R 116 and R v Reader [1987] 84 Cr App R 294. He has also referred us to the definition of "escape" set out in the 1795 edition of Hawkins' Pleas of the Crown, namely that the offence is committed "if the party were lawfully in prison for any cause whatsoever, whether criminal or civil, and whether he was actually in the walls of a prison ... or in the custody of someone who had lawfully arrested him." None of these authorities, however, concern the position of a prisoner on temporary release or in any close analogous situation. Nor do they contain any relevant discussion of principle. There are only three cases which it seems to us do offer some assistance, which we will consider in turn.[9]In E v Director of PublicProsecutions [2002] EWHC Admin 433 the appellant was a 14-year-old boy who had been remanded by the youth court into secure local authority accommodation to attend a hearing in four days' time. He was not in fact detained by the local authority because secure accommodation could not be found. He was nevertheless brought to the court on the date to which he had been remanded by a member of the local authority's youth offending team. He left court before his case was called on. He was subsequently rearrested and in due course convicted in the youth court of escape from lawful custody. He appealed on the ground that he had not at the material time been in custody. The Divisional Court dismissed his appeal. Forbes J, delivering the leading judgment, said this, at paragraph 19:
"I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. 'Custody' is an ordinary English word, which should be given its ordinary and natural meaning subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word 'custody' is defined in the following terms, amongst others: 'Confinement, imprisonment, durance'. 20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case."
That decision was cited with approval in Dhillon, to which we have already referred, and David Steel J's reference to "sufficient direct control" plainly echoed on the formulation adopted by Forbes J. Forbes J went on to find that, by reason of the remand in secure accommodation, the appellant was properly to be regarded as having been in the custody of the youth offending team from the date of the original remand, notwithstanding the fact that secure accommodation had not in fact been supplied, up to the moment that he was brought to court; and also thereafter because (see paragraph 21) "he remained under the direct lawful control of the youth offending team." Kennedy LJ, delivering a concurring judgment, said at paragraph 27:
"I agree that, from the facts as found, we can infer that, at the time when he ran off, the appellant was under restraint, in that he was at court in company with members of the youth offending team, who had the power, as he knew, if necessary, to restrain him. His liberty was thus restricted and he was therefore in custody."
[10]In R v Rumble [2003] EWCA Crim 770 the appellant, immediately after being sentenced by the magistrates to a custodial term, simply left the court, which had at that time no usher or security staff present. He was subsequently convicted of escape from lawful custody. On appeal he took the point that since at the moment he walked out no one had yet sought to subject him to any restraint, there being no one in court to do so, he could not be said to have been in custody. This court rejected that submission and held -- following in this regard Director of Public Prosecutions v Richards 88 Cr App R 97 -- that the appellant was in the custody of the court from the moment that he surrendered to his bail, whether or not any officer or member of the court staff had actually sought to constrain his movements. Buxton LJ said that the judgment of Forbes J in E was in no way inconsistent with that proposition.[11]In R (on the application of H) v Director of PublicProsecutions [2003] EWHC Admin 878 the appellant, who was aged 15, was remanded to local authority accommodation without any security requirement. A member of the local authority youth offending team, a Miss Cooter, was at court and he was released into her care. She tried to take him to her office in the court in order to make arrangements for where he was to go next. For some reason she could not get into the office, so she told him to wait outside while she tried to get in by another route. He absconded while she was doing so. Gage LJ held that he was escaping from custody because, as he knew, "his immediate freedom of movement was under the direct control of Miss Cooter", and "he was in [her] charge and could not just make off" (see paragraph 19).[12]Those appear to us to be the only relevant authorities. It seems to us that the definition of "custody" adopted by Forbes J in E is plainly authoritative and helpful.[13]We should however also refer to section 13(2) of the Prison Act 1952, which reads as follows:
"A prisoner shall be deemed to be in legal custody while he is confined in or is being taken to or from any prison and while he is working, or is for any other reason, outside the prison in the custody or under the control of an officer of the prison and while he is being taken to any place to which he is required or authorised by or under this Act... to be taken, or is kept in custody in pursuance of any such requirement..."
That provision is not formally definitive of the meaning of the word "lawful" for the purpose of the offence of escape from lawful custody. Nevertheless it is a useful pointer to the general understanding of the concept of custody, and it seems to us wholly consistent with the formulation adopted by Mrs Forbes in E.[14]In our view the conception underlying the decision in the cases to which we have referred, and also section 13(2) of the 1952 Act, is that a person may be in custody, notwithstanding that he is not physically confined, provided that he is nevertheless under the direct control of-- that is in the charge of -- a representative of authority. In the cases of E and H that person was the member of the youth offending team. The decision in Rumble is in no way inconsistent with that proposition. The appellant was plainly in the custody of the court, notwithstanding that there was no individual immediately available to give effect to that custody.[15]On that basis, we do not believe that a person who fails to return to prison at the end of a period of temporary release under Rule 9 can be said to have escaped from custody. He is not during his period of temporary release in custody, because not only is he not in prison but he is not under the direct or immediate control of any representative of authority. As we have already noted, the governor of the prison has confirmed in the present case that the appellant was under no form of supervision during his release. It is indeed of the essence of "temporary release" from custody that while it lasts the appellant is not in custody. That is what release involves. Of course it is true that the moment of the alleged escape does not occur during the currency of release but only at the point that it comes to an end and the appellant fails to return to custody from that moment on. He should no doubt have been in custody. But we do not think that it can be said that the reason he is not in custody is that he has "escaped" from it. As a matter of common sense and ordinary language what has happened is not that he has escaped from custody but that he has failed to return to it.[16]It follows that on the accepted facts the appellant did not as a matter of law commit the offence to which he pleaded guilty and that this appeal must be allowed and his conviction quashed.[17]That conclusion would be a cause for concern if there were no other offence committed in such circumstances, apart from any sanction in the Prison Rules applicable to those who wilfully fail to return from temporary release. However, section 1(1) of the Prisoners (Return to Custody) Act 1995 provides that a person who has been temporarily released in pursuance of rules made under the Prisons Act 1982 will be guilty of a summary offence if without reasonable excuse he remains unlawfully at large at any time after the expiry of the period for which he was temporarily released. Mr Levy put the 1995 Act very much at the forefront of his submissions, pointing out that it was plainly enacted on the understanding that there was no other offence appliable to the circumstances in question and with a view to filling that lacuna. He took us to the Parliamentary history (which had various remarkable features, not least that the Act was promoted in the House of Commons and the House of Lords by a team of daughter and father - Lady Olga Maitland and the Earl of Lauderdale). But the fact that Parliament believed there to be a loophole does not necessarily mean that there was. We have thought it right, therefore, to consider the position without reference to the 1995 Act. Nevertheless, we are reassured that our conclusion as to the position at common law does not produce the result that there is no available sanction against prisoners who fail to return from temporary release.

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